140 Ill. 326 | Ill. | 1892
delivered the opinion of the Court :•
Appellant seeks a divorce from appellee upon the ground of extreme and repeated cruelty. The Superior Court found: and decreed that appellee was not guilty as charged, and this, finding and decree were affirmed by the judgment of the Ap- . pellate Court.
Appellant and appellee were married in Frostburg, in the-State of Maryland, in 1857, and they thereafter resided together as husband and wife at that place until August, 1884,. when appellant abandoned appellee. After this abandonment,, appellant continued to reside at Frostburg until February, 1888, when he removed to Chicago. Appellee has continued to reside at Frostburg. Five children were born to the parties. The acts of cruelty charged are from a date shortly after the-marriage, and thereafter, at irregular intervals, during a period of about twenty-five years; and the last act of physical violence, which can fairly be claimed to be proved, occurred before the birth of the last child. There is conflict in the evidence as to the fact of physical violence; but conceding-that physical violence be proved, it falls short of that which*. under our ruling, amounts to the extreme and repeated cruelty-contemplated by the statute as a ground for divorce. Our ruling is, in no instance is a single act of physical violence asuffieient ground for divorce; and where a husband is complainant, it is not sufficient to show slight acts of violence on the part of the wife towards him, so long as there is no reason to suppose that he will not be able to protect himself by a proper exercise of his marital powers. (De LaHay v. De LaHay, 21 Ill. 252.) The evidence here shows that the assaults claimed to have been made by the wife w.ere, even if it be conceded that they are sufficiently proved, but little more than exhibitions of impotent rage. No painful or permanent injury was inflicted. The husband had no difficulty in protecting himself and asserting his mastery, and it is not free bf doubt that he was not, in most of the instances, himself the aggressor. But apart from this, there was cohabitation between the parties after the last act of physical violence proved. It is true, he testifies that he was kicked out of bed by her, subsequently; but she denies it, and that charge can not be held proved. Moreover, for more than three years after appellant abandoned appellee, he, residing within the same jurisdiction, filed no bill against her for divorce. And the last act of physical violence which, as before observed, can fairly be claimed to be proved, occurred ten years before the filing of this bill. This delay is wholly unexplained, and therefore the presumption arises from it, that whatever offense appellee committed against the marital rights of appellant was condoned by him. It would tend to the perpetration,, oftentimes, of great wrong, to allow a husband to abandon his wife, and then, after the lapse of years, go to a foreign jurisdiction, and there, by a sort of drag-net, bring before the court for review, as is here attempted to be done, every infelicity of their married life.
We think the judgment below right, and it must be affirmed»
Judgment affirmed.
